The Blog of International Judicial Assistance | By Ted Folkman of Murphy & King

Reflections on the Boston Lockdown

Posted on April 20, 2013

Update (4/22/13): Boston.com is reporting that Tsarnaev was charged in a sealed complaint and that a magistrate judge conducted his initial appearance at the BI. Assuming that the hearing went as initial appearances are supposed to go, the magistrate judge would have advised Tsarnaev of his rights, which brings the Miranda aspect of this story to a conclusion.

I live in Boston—in Roslindale to be precise—and so I was among the maybe one million people in the “shelter-in-place” area on Friday who awoke to requests from our governor to stay inside with our doors locked. Despite some of the comments I’ve read on Twitter and elsewhere, this didn’t feel like “martial law” or anything of the sort. We mostly like and trust our thoughtful, well-spoken governor, Deval Patrick, our inarticulate but crafty mayor, Tom Menino (did anyone outside of Boston understand what he was saying at the several press conferences?) and our no-nonsense Commissioner of Police, Ed Davis. And so if they say that it’s important to public safety for us to stay indoors and for the MBTA (our public transportation system) to be shut down, people are willing to do as asked and to save questions for another day.

But now it is another day, and with the emergency over and the two suspects either dead or in custody (thank you to our police, the FBI, and others!) it’s appropriate to reflect on our experience. Here is what I’ve been thinking about—I would love to know your thoughts, too.

The Arrest

It seems clear that the government intends to try Tsarnaev in the District Court rather than trying to try him before a military tribunal. Good—the alternative would, I think, be unconstitutional. There’s another question—a separate question, which is a point that not everyone has understood—about whether the government must advise Tsarnaev of his rights, and if so, when. Does the government have to advise him of his rights upon arrest? After arrest but before questioning? After some questioning? Never?

The answer can’t be “never.” Under Rule 5 of the Federal Rules of Criminal Procedure, Tsarnaev must be taken before a magistrate judge for an initial appearance “without unnecessary delay,” and at that appearance, the magistrate judge will inform him of the charges, of his “right to retain counsel or to request that counsel be appointed if [he] cannot obtain counsel” and of his “right not to make a statement, and that any statement made may be used against” him. So at the latest, the court itself will inform Tsarnaev of his right to counsel and his right to remain silent at the initial appearance.

The answer also can’t be “upon arrest.” Miranda is all about interrogation without being first advised of one’s rights, not about arrest. The Miranda warnings simply have nothing to do with arrest per se, nor is there any reason to think that an arrest becomes somehow invalid or illegal in the absence of the warnings.

Now, there is a real question about whether the recognized public safety exception to the Miranda rule applies here, but it seems to me that if the government wants to ask Tsarnaev whether others, besides himself and his brother, were part of the conspiracy and might still pose a threat to the public, or other questions aimed at determining whether there is still some threat, it should be free to do so without warning Tsarnaev of his rights. It seems the government wants to push the envelope on this “public safety” exception, and maybe it is wrong to do so, and maybe folks are right to criticize it. But I am not overly concerned about this point, for a few reasons. First, Tsarnaev has his rights whether or not the government advises him of them, so even if the government does ask such questions, Tsarnaev can refuse to answer. (Yes, I understand that he may not know his rights, or he may mistakenly believe that his right to remain silent only comes into existence once he has been informed of his rights). Second, even if the government questions Tsarnaev without informing him of his rights, and even if its questioning is not within the scope of any exception to Miranda, Tsarnaev will be prejudiced only if the government later seeks to introduce his pre-Miranda-warning statements as evidence against him, which may never happen. Third, the rule of Miranda is merely prophylactic. The rule merely requires the exclusion of evidence obtained in violation of the rule. Given the serious threat to public safety Tsarnaev apparently posed, my basic reaction to the more overwrought commentary about Miranda is to advise people to chill.

The Lockdown

I am much more concerned about the “shelter-in-place” request, or as it has been described, the “lockdown.” In hindsight, was it wise to bring a major American city to a standstill, at a cost of hundreds of millions of dollars and a major though short disruption to daily life, given what was known at the time?

First, let’s note that this doesn’t seem like a legal question, since as far as I know no one was actually ordered to stay indoors, and no one was punished for failing to comply with the request. Let’s also note that it seems that the police were able to locate Tsarnaev only after the “shelter-in-place” order was lifted, and, at least according to Commissioner Davis’s comments, apparently because the order was lifted: a Watertown man who had stayed inside all day finally left his home in the evening and saw blood on the boat where Tsarnaev was hiding.

I think the lockdown looks a lot more sensible given yesterday’s denouement than it would have looked if the authorities had been unable to arrest Tsarnaev yesterday. At the early evening press conference at which the authorities announced that they had not located Tsarnaev and that the “shelter-in-place” recommendation was being lifted, the natural question was: if it was not safe for the city to operate for the last day, when we believed Tsarnaev was somewhere in a neighborhood in Watertown, why was it safe for the city to reopen, when it seemed Tsarnaev could be anywhere in the Boston area? And yet it was obvious to everyone that we couldn’t keep the city closed for the duration of the manhunt. What if it took days or weeks?

The bottom line, I think, is that it was a little unsafe to be out and about while Tsarnaev, apparently a dangerous criminal with access to explosives, was at large. But as the decision to lift the “shelter-in-place” recommendation with Tsarnaev still not in custody shows, life has to go on. You can’t be on lockdown forever until it is perfectly safe to go about your business, since it is never perfectly safe to go about your business.

And so when the authorities are going through the exercise of identifying the lessons of this weekend, I hope they will rethink the idea of shutting down a city when there’s a bad guy on the loose. It’s not clear what a shutdown accomplished, and so it’s not clear that the shutdown justified its high human and economic costs.

8 Comments

I knew that when the shelter in place order would be discussed that one of the primary objections would be economic. The money it cost. I live in a city that would never shut down for that very reason. The lives it might cost, I think, to shut down would be more than compensated for by the commerce generated that day.

The shelter in place order, I feel, accomplished a couple of things. First, it allowed first responders to be able to search unimpeded by the general population, not put any innocent bystanders in harms way and focus totally on the subject of their search. Secondly, even though they didn’t find him in the shelter in place order period, they knew where he was not. While he was located just outside of their perimeter, they knew for sure he was not where they were able to search. Third, once he was encountered and engaged, their full attention and strategy could be implemented with minimal concern for where everyone else might be. Finally, what if there were other explosive devices deployed somewhere? This also gave them time to clear as much as possible, again, minimizing public exposure to a preventable risk.

All of this might be obvious to some but when others cite the economy as a primary reason for not sheltering in place, it lets me know the safety of the people is not important to them. Enough innocent people have lost their lives. Putting more people in danger, I don’t believe serves us very well. I admire and support the Governor of Massachusetts, its law enforcement and its citizens for making the decision and complying with the request. It could not have been easy for them to say “shut it all down and let’s find this guy”. If they thought about the criticism that people are heaping on them now they may not have done it. I’m glad they did.

The danger was not minimal, it was unknown. As you stated, it was a request, not an order. Anyone who wanted to ignore it could at their own risk. If something would have happened to them, i would not have felt in the least bit sorry. It has worked out for the good this time. It would be nice to be able to say this decision will never have to be made again….but it might. Hopefully, this experience sends a message to anyone who might want to try something like this again. We will shut this city down for the sole purpose of finding you and bringing you to justice (that’s the printable way of saying what I think) whatever the cost and without knowingly sacrificing another life.

Thank you for the comment! You write that the “shelter-in-place” request “allowed first responders to be able to search unimpeded by the general population, not put any innocent bystanders in harms way and focus totally on the subject of their search.” I don’t see that requiring people miles away to stay indoors did anything to aid the search, one way or another. Perhaps the idea was to keep people indoors so that police who ordinarily would expect to have to do police work in other parts of the area could be redirected to Watertown. But that’s not how the request was pitched to the public, which was told to stay indoors with doors locked and not to open them for anyone except police. The implication was that the whole area was in danger.

You also write: “this experience sends a message to anyone who might want to try something like this again. We will shut this city down for the sole purpose of finding you and bringing you to justice … whatever the cost and without knowingly sacrificing another life.” I think the flip side is also true. We are sending a message that a terrorist can shut down a major American city at will. That can’t be a good message to be sending.

The possibility that there may have been other explosive devices out there could have been a reason to set the perimeter of the shelter-in-place so wide. There are probably things known only to the men and women who made that decision that played a part. We are not professional criminologists. We may never know everything that went into that decision but it appears that they made the right one. From where I sit, and I am pretty far away, they were rather transparent. Why not give them credit and not do so much Monday morning quarterbacking.

As for the argument that we are sending a message that a terrorist can shut down a major American city at will, I heard that argument earlier today and was equally unimpressed. If the message that we will hunt down their sacrificial lamb, keep him/her alive (no 72 virgins), and bring them to justice is a victory to terrorists, I’d be willing to send it all day long. The message that we will do anything to keep them from taking another American life is our victory. If we frame it any other way—shame on us. If the media didn’t see what law enforcement in Boston did as a victory then they didn’t see what I saw. Stop behaving as if we are powerless to, at minimum, influence the message, if not put it out there in a manner that benefits us.

I spent much of Bad Friday, as I normally do, working out of home, just down the street from Watertown. As I say in an essay on SIP: “I made it a point on work breaks and the distraction of the news storm to walk around my neighborhood and carry on. I wish officials had asked everyone to do the same.”

It is impossible to predict what might have happened if officials had behaved in a different way and asked us to just, “be safe”, “be strong”, “be smart”, and “be free”. I’m pretty certain that the sweep of the area would have proceeded unimpeded.

It was the lifting of SIP, after a frustrating search with no conclusion, which seemed to be an admission on the part of the same officials, that it didn’t work. After assuring the neighborhood it was “safe” to leave their homes, a citizen lifted the tarp off his boat and revealed the object of the hunt. And, exhibiting caution, intelligence, and bravery that citizen called on the police to do what they are trained to do. Officials had to have breathed an enormous sigh of relief that it ended with no more loss of life.

Life is precarious, especially when it’s lived freely. The facts show that the freedom of one man led to the arrest of another. SIP had very little to do with it. I hope it isn’t used again to fight terrorism.

Thanks, Tom, for that comment! I think your reaction to the day differed from mine somewhat in the details, though we both have concluded (tentatively, I assume—we are still so close to the event) that the “shelter-in-place” recommendation was unwise in hindsight.

I’m somewhat disappointed at the lack of media critique of the lockdown. It seems that we have a greater trend towards accepting more disruption of our lives in the name of security.

For many people the lockdown and manhunt may have built a sense of community and been a small break from their routine and a relief from the fear of the miniscule risk of encountering the terrorist. For others, it was a lost day, lost wages to pay for food or rent, an inability to comfort a loved one in the hospital, more time and anxiety waiting for their diagnosis, or more physical and mental pain or disability from a delayed surgery.

The media has focused more on the former.

That said, many arguments for the lockdown don’t hold water. Particularly disconcerting is the claim that people should stay indoors because we need the officers from their community on the manhunt. Since when in a free society should your ability to travel or conduct your affairs require a law enforcement officers supervision?

Also the number of the officers involved in this hunt seemed rather excessive and more governed by the labelling of this suspect as a terrorist than any other factor. Has this much firepower been expended to capture a dangerous prison escapee or a mobster on the run?

The other arguments tend to focus on the risk of additional attacks and the number of bullets or bombs thrown. First, outside of the immediate vicinity from where the escapee left on foot, the risk was miniscule to any one individual, not much like any other case where a dangerous felon is loose. True, the person had bombs, but only those he was capable of carrying. While a bomb thrown into a crowd can kill multiple people; guns can kill. Furthermore, a gun can be fired from a greater distance.

Finally I find the closing of the U Mass Dartmouth dubious. It was 35 miles away, and frankly they could have planted bombs anywhere in the metro area. Again the risk to any one person is small, and the next terrorist could have bombs planted anywhere right now. Unless there is something that has yet to be disclosed, this closing seems more meant to send a message that “we are doing something important” than really protect the public against anything more than a remote risk

We accept a certain amount of risk from terrorist, drunk drivers, and other causes in our normal lives. We are also fortunate that the risk of death from a terrorist is far smaller than a variety of other risks.

Jon, thanks for your comment! I don’t doubt that this suspect was highly dangerous—he had just had a shoot-out with police in which he or his brother had thrown bombs out the window of a car. I don’t minimize the danger he posed at all. And I don’t agree that we should think of the risk posed by a terrorist as we think of the risk posed by, say, drunk drivers. I don’t think human beings are wired to think in that way. There is no question that it was imperative that he be caught, and it doesn’t seem to me that the government used too much manpower to do the job, as you suggest. All that being said, was it sensible to shut down the whole city? That’s my question. I think the answer is probably no, since as the press conference on Friday evening showed, we were prepared to reopen the city even before the suspect was caught.

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